KRISHNANKUTTY NAIR Vs. JOSEPH

JUDGEMENT

(1.) The order of the Principal Munsiff, Alleppey, (Ext. P4) in I. A. No. 2835 of 1980 in O. P. (Elec.) No. 85 of 1979 is impugned by the petitioner who was declared elected as a member of the Pulincoonnu Panchayat from Ward No 2 in the election held on 18-9-1979. The validity of his election was challenged before the learned Munsiff by the 1st respondent under S.32 of the Panchayats Act and R.3 and 5 of the Kerala Panchayats (Decision of Election Disputes) R.1963 (for short the "rules of 1963").

(2.) The petitioner contended before the learned Munsiff that the election petition presented by the 1st respondent was not maintainable for the reason that all the candidates whose nominations bad been accepted by the Returning Officer were not impleaded and the petition was therefore liable to be dismissed in terms of R.5(8) of the Rules of 1963. One of the issues framed by the learned Munsiff was as regards the maintainability of the election petition. The present petitioner thereupon filed I A No 2835 of 1980 praying that the issue regarding maintainability be tried preliminarily The election petitioner did not raise any objection to it. The present petitioner produced before the Munsiff an attested copy of the original certificate said to have been issued by the Returning Officer showing that nominations of 7 persons had been accepted by the officer. However the Munsiff held that the Returning Officer had no authority to issue an attested copy after the declaration of the result of the election. For that reason the Munsiff refused to act on the attested copy and held that the question regarding the maintainability could not be tried preliminarily and that it would be tried along with the main issues.

(3.) The 1st respondent's (election petitioner's) counsel Shri Varghese Kalliath submits that the Returning Officer had no authority to issue an attested copy of the original certificate. Such copy, counsel says, was not legal evidence on the basis of which the Munsiff could be invited to render a decision. He therefore submits that it is only proper that relevant evidence on that issue should be adduced along with the evidence on the merits of the case under the other issues.